STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARILYN D. SCURLOCK,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 07-3430

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RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on November 27, 2007, in Panama City, Florida.

APPEARANCES

For Petitioner: Marilyn Scurlock, pro se

3936 Scurlock Lane

Panama City, Florida 32409

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether the correct retirement date was established for Petitioner.

PRELIMINARY STATEMENT

Petitioner Marilyn Scurlock (Ms. Scurlock) was awarded disability retirement by the Florida Division of Retirement (Division) on June 1, 2006. Subsequently, Ms. Scurlock requested that her effective retirement date be moved back to October 27, 2004. In a letter dated August 25, 2006, the Division denied her request.

Ms. Scurlock requested a hearing. In response, the Department of Management Services issued an Order Transferring Matter to the Division of Administrative Hearings that was filed with the Division of Administrative Hearings on July 25, 2007.

A hearing on the matter was scheduled for September 6, 2007.

Ms. Scurlock requested a continuance, and the matter was rescheduled for October 23, 2007. Thereafter, the Division requested a continuance, and the hearing was set for

November 27, 2007, in Panama City, Florida, and was heard as then scheduled.

Ms. Scurlock was assisted during the hearing by her sister- in-law. Ms. Scurlock testified in her own behalf. She offered no other evidence. The Division called Ms. Debra Roberts as a witness and offered three exhibits, which were all admitted into evidence.

After the hearing, Petitioner timely filed her proposed recommended order, which was entitled "Order," on December 6,

2007. Respondent filed its Proposed Recommended Order on December 7, 2007.

References to statutes are to Florida Statutes (2004) unless otherwise noted.

FINDINGS OF FACT

1. Ms. Scurlock was employed as a secretary by the Public Defender of the 14th Judicial Circuit for 12 to 13 years, in Panama City, Florida. As such, and after becoming vested in the Florida Retirement System (FRS), she accrued certain rights under the FRS.

2. The Division has over 900 employees and administers benefits for more than 700,000 members. The Division is charged with administering the FRS.

3. Ms. Scurlock's performance while employed by the Public Defender deteriorated in 2004. As a result, she was discharged on October 27, 2004. She had been diagnosed as having multiple sclerosis prior to her discharge. She is currently medically unable to engage in gainful employment.

4. Ms. Scurlock does not recall if the Public Defender provided her with information concerning retirement at the time of her discharge. Nevertheless, she was aware of the availability of disability retirement, and during February 2005 she completed Form FR-13, Application for Disability Retirement.

   She stated in the application that her disability was the result of multiple sclerosis, among other maladies.

5. Ms. Scurlock was assisted in seeking disability retirement by her sister. Ms. Scurlock signed the FR-13 application, and it was sworn before a notary public on February 18, 2005. Ms. Scurlock believes her sister mailed the form. The FR-13 may have been addressed to the Florida Department of Health, but in any event, it was not received by the Division in 2005.

6. Assisted by her sister, Ms. Scurlock telephonically contacted the Division on April 11, 2006, to inquire about her application for disability retirement. At that time, she avowed that the FR-13 had been sent in January 2005 to the Department of Health. Upon being advised that she needed to submit a new form in order to obtain benefits, she did so.

7. An FR-13 was received by the Division on May 24, 2006.

   
   

   Attached to the application was a copy of the application sworn before the notary public on February 18, 2005. The Division found the FR-13 submitted on May 24, 2006, to be complete and sufficient to establish that Ms. Scurlock should be paid disability retirement benefits beginning June 1, 2006.

8. Although Ms. Scurlock may have suffered some cognitive impairment as a result of being afflicted with multiple sclerosis, she was aided by her sister, who apparently has no

   cognitive impairment, when she first attempted to file in early 2005.

9. Moreover, Ms. Scurlock adequately presented her case at the hearing, and to the extent that cognitive impairment might influence the outcome of this case, it is found that she is not so impaired that she could not timely file an application for disability retirement. For the reasons set forth below, whether she was physically or mentally able to file a FR-13, or whether the state or one of its agents failed to inform her of her rights, has no bearing on the outcome of this case.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2007).

11. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981) and Balino

    v. Department of Health and Rehabilitative Services, 348 So. 2d

    
    

    349 (Fla. 1st DCA 1977).

    
    

12. It is Ms. Scurlock's burden to demonstrate that the Division erred in determining her effective retirement date to be June 1, 2006.

13. Section 121.091, Florida Statutes, provides as follows:

    1. Benefits payable under the system--

       
       

       Benefits may not be paid under this section unless the member has terminated employment as provided in s. 121.021(39)(a) or begun participation in the Deferred Retirement Option Program as provided in subsection (13), and a proper application has been filed in the manner prescribed by the department. The department may cancel an application for retirement benefits when the member or beneficiary fails to timely provide the information and documents required by this chapter and the department's rules. The department shall adopt rules establishing procedures for application for retirement benefits and for the cancellation of such application when the required information or documents are not received.

       
       

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       1. DISABILITY RETIREMENT BENEFIT.--

          
          

          1. Disability retirement; entitlement and effective date.--

             
             

             1.a. A member who becomes totally and permanently disabled, as defined in paragraph (b), after completing 5 years of creditable service, or a member who becomes totally and permanently disabled in the line of duty regardless of service, shall be entitled to a monthly disability benefit; except that any member with less than 5 years of creditable service on July 1, 1980, or any person who becomes a member of the Florida Retirement System on or after such date must have completed 10 years of creditable service prior to becoming totally and permanently disabled in order to receive

             disability retirement benefits for any disability which occurs other than in the line of duty. However, if a member employed on July 1, 1980, with less than 5 years of creditable service as of that date, becomes totally and permanently disabled after completing 5 years of creditable service and is found not to have attained fully insured status for benefits under the federal Social Security Act, such member shall be entitled to a monthly disability benefit.

             
             

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14. Florida Administrative Code Rule 60S-4.0035 provides as follows:

    60S-4.0035 Retirement Application and Effective Retirement Date.

    
    

    1. It shall be the responsibility of the member, or the beneficiary in the event of the member's death, to make proper application to the Division for retirement benefits. A member may apply for retirement benefits within 6 months prior to his date of termination of employment. If a member terminates his employment and elects to defer his retirement to some future date, he may apply for deferred benefits up to 6 months prior to the date he desires his retirement to become effective. Application for normal or early retirement as provided in Rules 60S-4.004 and 60S-4.005, F.A.C., respectively shall be made on Form FR-11, or on Form FST-11b if by the beneficiary of a deceased member as provided in Rule 60S- 4.008, F.A.C.; or for disability retirement as provided in Rule 60S-4.007, F.A.C, on Form FR-13. Such forms are adopted in Rule 60S-9.001, F.A.C.

       
       

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       (3) The Division shall establish the member's effective retirement date as follows:

       
       

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       1. For a member who makes application for and is approved for disability retirement in accordance with Rule 60S-4.007, F.A.C., and for whom the Division has received from the employer the required documentation of the member's termination of employment, the effective retirement date shall be:

       
       

       1. The first day of the month following the Division's receipt of Form FR-13, when receipt is before the documented termination date, and provided no salary or workers' compensation payments are reported and no creditable service is granted past the month in which the Form FR-13 is received; or

          
          

       2. The first day of the month following the documented termination date, provided the Division's receipt of Form FR-13 is within

          30 calendar days after such date; or

          
          

       3. The first day of the month following the Division's receipt of the Form FR-13 when receipt is more than 30 calendar days after the documented termination date; or

       
       

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15. It was Ms. Scurlock's responsibility to provide the Division with notice of her intentions. She did not do this until May 24, 2006. The Division did not contest her entitlement to disability retirement, and without delay proceeded to pay her in accordance with the applicable statutes and rules.

16. There is no doubt that a person suffering from multiple sclerosis may find interacting with a bureaucracy like the Division to be difficult. However, as noted in Hoffman v. State of Florida, Department of Management Services, Division of Retirement, 964 So. 2d 163 (1st DCA 2007), while it is regretful that Ms. Scurlock suffered a severe financial loss, the loss experienced was not attributable to the Division. There is no provision in law that permits the Division to make an exception to the clear wording of the applicable statutes and rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Management Services enter a final order affirming the establishment of June 1, 2006, as the beginning date of entitlement to disability retirement pay in the case of Marilyn Scurlock.

DONE AND ENTERED this 18th day of December, 2007, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

COPIES FURNISHED:

Marilyn Scurlock 3936 Scurlock Lane

Panama City, Florida 32409

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2007.

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director Division of Retirement

Department of Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-003430

Orders for Case No: 07-003430